Combat Terrorists, But Don’t Kill the Internet

Original Article

With privacy concerns already heightened, and Colorado judges making private expense accounts public, now comes something even more alarming: An Obama administration proposal would allow FBI access to the customer records of Internet access providers without a judge’s order. As a result, the proposal means Internet records are now less protected under the Fourth Amendment against unreasonable searches and seizures than telephone or cell-phone records or the mail today.

The effort to combat terrorism should not inadvertently spill over and affect the legitimate privacy expectations of innocent citizens in Colorado who utilize the Internet for basic commerce, communication, research and creativity. Without a reasonable expectation of privacy, many of us may hesitate to use the Internet, dampening the powerful potential of the Internet to expand the economy.

In today’s struggling economy, the news in the technology sector is encouraging: Recent corporate earnings data reveal a surge of investment in computer servers. Many of the servers are being used to provide cloud computing services, in which storage and processing take place not in your PC but in the network. New technology like “cloud computing” will mean better technology, easier access to files, and an economic boost to Colorado’s high-tech sector.

At the same time, as is so often the case with technology, some existing laws are obsolete barriers to progress. Efforts to update laws have so far been framed as a civil liberties issue, but ought to be seen as an issue vital to the creation of new jobs and increased productivity.

Spending on cloud computing is predicted to increase 27 percent a year through 2014, and the number of servers will triple over that period, according to the market research firm IDC. The Communications Workers of America estimate that every $5 billion spent on broadband connections to the growing storage and processing powerhouse in the cloud will create 100,000 jobs per year. In other words, this new technology will mean more jobs and a tremendous economic boost.

Unfortunately, current law means businesses and individuals will lose some of their privacy protection when they move data from their own computers to the cloud.

For example, the Electronic Communications Privacy Act provides less protection for information stored on cloud-based servers than for the information stored on your PC or in your safe deposit box. Government agents have to obtain a warrant issued by a judge or magistrate to gather information from its owner. With the advent of cloud computing, the government now has a completely new and unanticipated opportunity to obtain the same information from a third party — a cloud computing service provider — with a simple subpoena. According to one estimate, there are 10,000 federal, state and local governmental agencies with subpoena power.

Elected officials frequently wonder that they can do that would be pro-technology. Part of the answer includes fixing these statutory problems so businesses and individuals retain the same level of privacy protection Congress intended them to have when it passed these two laws many years ago.

Congress can provide the FBI with needed investigative tools in terrorism investigations while also clarifying that, for all other purposes, the Fourth Amendment protections for law-abiding citizens against unreasonable searches and seizures applies to the same extent to e-mails, searches and files stored over the Internet as it currently affects telephone and cell-phone calls and the mail delivered by the post office. That would be pro-Internet and pro-jobs.

Hance Haney is a senior fellow and program director at the Discovery Institute. This op-ed was written in response to last week’s Technology Policy Institute Conference in Aspen.

Hance Haney

Director and Senior Fellow of the Technology & Democracy Project
Hance Haney served as Director and Senior Fellow of the Technology & Democracy Project at the Discovery Institute, in Washington, D.C. Haney spent ten years as an aide to former Senator Bob Packwood (OR), and advised him in his capacity as chairman of the Senate Communications Subcommittee during the deliberations leading to the Telecommunications Act of 1996. He subsequently held various positions with the United States Telecom Association and Qwest Communications. He earned a B.A. in history from Willamette University and a J.D. from Lewis and Clark Law School in Portland, Oregon.